Under the Family Law Act 1975 there is only one ground for divorce and that is that the marriage has broken down irretrievably. It is of no consequence at law whose “fault” the breakdown of the marriage was.
To be eligible for a Divorce parties must demonstrate to the Court the following:
- That they have been separated for a period of 12 months. It is possible to be separated under the one roof, however, if this is the case you will need to file an affidavit in support of your application for Divorce;
- The marriage must be of more than 2 years duration. If your marriage has been of less than 2 years duration you will need to seek the leave of the Court to proceed with your application;
- That either party is an Australian resident or usually resides in Australia;
- That both parties are aware of the application for Divorce;
- That if there are children of the marriage that adequate arrangements have been made by the parties for the proper care of the children.
An application for Divorce can be made by jointly by either the Husband or the Wife and you do not require the consent or signature of your spouse to obtain a divorce.
If a spouse does not agree to the Divorce it is possible to make the Divorce application on your own. However, it will be necessary to serve the divorce application on the other spouse before the Divorce Hearing.
If an application for a Divorce is successful the Divorce order will take effect one month after the order is made.
If you want to settle parenting or financial arrangements after you have separated, it is not necessary that you first obtain a divorce.
Divorce is a separate court case to children and/or property issues.
There is however, a time limit of 12 months from the date of a divorce order becoming absolute for a party to commence property proceedings. If court proceedings for property adjustments are commenced after this 12 month period, the court must grant permission for the proceedings to commence.
Please contact us to make an appointment to discuss how Louise Coady Family Lawyers can support you.